This article shows how the political branches sought to handle the politically explosive issues of what constitutional constraints might apply to America's governance of its newly acquired empire, by reframing those issues as legal ones suitable for decision by the U.S. Supreme Court. The Insular Cases, she shows, were a paradigmatic instance of political branches deliberately handing off sensitive and contentious issues to the judiciary for resolution. The article is expertly researched and argued with precision and analytic panache.

One of the eminent trustees of the Cromwell Foundation advised its board, "I can say with confidence that the article is a significant contribution to the new body of work on the Insular Cases that has been stimulated by efforts of the three branches of our government to apply US law to extraterritorial US activities in Iraq, Afghanistan and Guantanamo."

1 comment:

Anonymous
said...

Interesting, though the Insular Cases stayed good law until recently because the actual political controversy - American colonialism - was resolved politically at the time by no longer taking formal colonies as we did with the Philippines. American expansionists ultimately were given a green light by the Supreme Court in these cases but they lost out politically to other modes of international influence beyond formal territorial acquisition. The expansive occupation apparatus of our recent adventures in the Middle East is in contrast to the more indirect engagements and use of puppet regimes subsequent to this era and throughout the 20th century - but does expose the constitutionality of quite open-ended expansion powers enabled by the Insular Cases.

Unfortunately, this undermines the more optimistic view of judicial resolution of contentious political debate that this particular article seems to advance by lacking the proper historical context for whether the cases "resolved" the issue as such.